Settlement reached in family separation cases: More than 1,000 rejected asylum seekers to get second chance if court approves

By Allyson Chiu and Fred Barbash

|Washington Post|

Sep 13, 2018 | 8:35 AM

Guatemalan asylum seeker Hermelindo Che Coc falls asleep watching TV with his son Jefferson Che Pop after they arrived home from LAX, where they reunited on July 14. (Marcus Yam / Los Angeles Times)

As many as 1,000 asylum seekers whose claims were heard and rejected by the government under traumatic circumstances of family separation will get a second chance under an agreement announced late Wednesday. While the government did not agree to return parents already removed from the country, it said it would consider "individual cases in which plaintiffs' counsel believes the return of a particular removed" class member "may be warranted."

The agreement, which still needs approval by the court, was a significant development in the ongoing controversy over the Trump administration's "zero-tolerance" policy, which resulted in the separation of thousands of parents from their children at the border starting in the spring. Some of the asylum seekers in question, according to a lawsuit brought on their behalf in August, were rejected by immigration authorities after interviews during which they were said to be "traumatized" by having had their children torn away from them.

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The settlement between the government and plaintiffs in three lawsuits represents a major victory for the asylum seekers, children and adults alike. It gives them another chance to apply for asylum before the U.S. Citizenship and Immigration Services, which will adjudicate the applications. Asylum seekers must show "credible fear of persecution or torture" if returned to their home countries.

In the meantime, they will not be removed from the U.S.

But it does not guarantee that they will ultimately obtain asylum — and thus permission to remain in the United States. "It's a really important step in the right direction," Johnathan Smith, legal director for Muslim Advocates, one of the advocacy groups involved in litigation against the government, told the Washington Post. "There's a lot more work to be done. These individuals have to have these interviews. ... This is by no means the end of the road, but it does a lot of work in curing a lot of the injustice that our clients suffered as a result of the government's policies or practices."

The number of those affected is estimated at "well over 1,000 parents" by the two groups, Muslim Advocates and the Virginia-based Legal Aid Justice Center, that made the announcement late Wednesday.

"The exact plaintiffs are slightly different in the different cases," Smith said, "but essentially the cases are on behalf of the parents and the children who were separated from their families at the border who had come seeking asylum."

The settlement attempts to address issues faced by people who are in various stages of the asylum process, ranging from people who failed their "credible fear" interviews to those who lost their cases and are set to be deported. Under the agreement, the government will allow parents and children in certain situations to remain in the country together even if they are at different points in the asylum process. This could help bring to an end some of the family separations that created an uproar and a political backlash against the Trump administration.

Part of the settlement's goal was to ensure that seeking asylum does not "undermine" the reunification efforts, Smith said.

"It's important these families be reunified and these parents be with their children and the children with their parents, and for them to know that their family unit will be respected by the federal government and they will have security in that," he said.

The fact that the government settled, albeit only after court orders blocking their actions, demonstrated its desire to push the issue into the background as the midterm election approaches. According to court documents filed Wednesday, the counsel for plaintiffs in each of the lawsuits and the government were ordered by Judge Dana Sabraw in California to "meet and confer and propose a solution — one which follows the law, and is equitable and reflective of ordered governance."

"The government has agreed that all parents still in the United States who underwent the asylum interview process after being forcibly separated from their children and subsequently had their claim rejected will now have a second chance to have their asylum request reviewed, including the opportunity to submit additional evidence and testimony," two of the groups involved in the litigation announced in a statement. "Today's agreement, if approved by the court, will provide much-needed relief to these parents and their children and will ensure that their asylum claims are properly considered by federal officials."

The agreement, filed in federal court, sets no precedent for future asylum seekers, the government emphasized. It covers those represented in the three lawsuits brought against the government. Per the settlement's terms, if it is approved, the lawsuits will be dropped, although the judge will continue to supervise the execution of the agreement.

The plaintiffs in one of the cases at issue — Dora et al. vs. Sessions et al., filed last month in federal court in Washington — are 29 asylum seekers who the suit said "were forcibly separated from their children by government officials" and then "pushed" through the asylum screening process while "suffering from extreme trauma" due to family separation. As a result, it was alleged, "they could not articulate their stories" to officials and did not understand the questions. Based on these interviews, however, the government rejected their asylum applications and were preparing to deport them when the suit was filed.

The "Dora" in the case was a Honduran woman who came with her 7-year-old son fleeing what her lawyers said was "extreme domestic violence and abuse." Another, named only as "Beatriz," came from El Salvador with her 9-year-old daughter "fleeing persecution by the military, by her husband, and by her husband's gang." Both women received a negative "credible fear determination," the lawsuit said. "Dora" had been "subject to deportation at any time" and "Beatriz" is detained at a facility in Texas.

A second case — M.M.M. vs. Sessions, also filed in federal court in Washington as a class action — involved six immigrant children, ages 6 through 13, who were forcibly separated from the parents after entering the U.S. Judge Paul L. Freedman transferred most of those claims to Sabraw in the Southern District of California.

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Another class action heard by Sabraw, known as Ms. L vs. U.S. Immigration and Customs Enforcement, involved the separation of a mother and her 7-year-old daughter who sought asylum "fearing near certain death" in the Democratic Republic of Congo. It resulted in an order blocking the Trump administration from deporting parents and children that it separated. The case resulted in another order requiring the government to reunite parents with their children, a process still not complete, according to the latest court filing.

"Our government forcibly ripped children from the arms of asylum-seeking parents, and then asked them, debilitated by trauma, all by themselves, unrepresented by lawyers, to articulate complex legal claims without any support or accommodation," said Simon Sandoval-Moshenberg, legal director of the Immigrant Advocacy Program at the Legal Aid Justice Center, in a statement. "With this settlement, those parents will now finally have a fair shot at winning protection in the United States."

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